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Sunday, March 06, 2016

(Re)Booting the Bar: Barbs, Bribes and a Bar Exam

In a post some years ago, I reproduced a letter that I'd written to the then Chairman of the Bar Council, Gopal Subramanium (a leading senior counsel, whose prodigious talent I had the great privilege of witnessing first hand in the hugely controversial DU Photocopying case).

I noted then that the Bar Exam (about to be unleashed for the first time on unsuspecting law students) was on shaky legal ground, given that it lacked statutory backing. Here are some extracts:

"Thirdly, and perhaps most importantly, the V Sudeer case (V. Sudeer v. Bar Council of India, AIR 1999 SC 1167) does not appear to permit a bar exam by the BCI (Bar Council of India) without an amendment to the Advocates Act. In Sudeer, the court categorically held that any additional eligibility criteria for the practice of law over and above what was mentioned in Section 24 of the Advocates Act was unconstitutional. Particularly if such additional criteria amounted to either a bar exam or a training of some sort, since the power to mandate such exams/training was expressly taken away via an amendment in 1974 to the Advocates Act. As you are no doubt aware, in the light of the 1974 amendment, once a student legitimately cleared his or her exams at a recognized University, he/she was entitled to enrol in a state bar council and practice before any court of law, without having to undergo training or take an exam of any sort.

Therefore, if such an exam needs to be conducted by the BCI, it can be done only through a legislative amendment. The court in Sudeer stressed that an enrolment comes with an automatic right to practice—subject to conditions of practice framed by BCI, High courts and the Supreme Court.

Therefore, the BCI cannot, in my personal view, attempt to pass off a bar exam as a “condition of practice”, since such an exam would effectively emasculate the concept of enrolment i.e. enrolment is meaningless without the right to practice. In short, the court is likely to see this cleverly crafted condition of practice as nothing more than a camouflaged “pre-enrolment” condition, a condition that the BCI has no authority to impose under the present statutory scheme."

Livelaw now reports that this issue has returned to haunt us, with the Supremes casting some doubt on the legality of the exam. They've appointed KK Venugopal as amicus curiae (a leading senior counsel and one of our finest; fortunate to have him represent me in the CLAT reformation PIL, which unfortunately has been at the receiving end of delays, and demoted by the SC registry several times in the recent past to future "listing" dates. Strange really, given that the court was initially keen on expediting the matter).

The challenge to the legality of the bar exam is not a new one. Indeed, the present proceeding at the Supreme Court comes out of a challenge filed way back in 2008 in the Bonnie FOI case (see this piece in Legally India that documents the various proceedings that led up to the present Supreme Court hearing).

However, what has changed are the circumstances, thanks to an allegedly anti-national barb by Kanhaiya Kumar and the barbaric booting he consequently bore at the hands of supposedly nationalistic lawyers. In the true spirit of realist jurisprudence, this has no doubt impacted the courts' perception of the profession and the need for robust entry level filters such as the "bar exam". My own guess is that courts may have been reluctant to block the bar exam earlier, owing to the stellar status of Gopal Subramanium and the gravitas that he commanded. However, now that our beastly bar has kicked Kanhaiya and his kin and lowered itself in the eyes of the court (and the country), the court may not defer as much. Add to this other factors such as bribes and a dodgy tender by the Bar council to conduct the Bar Exam and you can see why "deference" to a learned Bar will be the least of the courts' worries/constraints.

Striking down the legality of the exam will not however mean that the court offers a free run for all 50,000 law graduates from the 1000 odd law schools each year. Far from it! From the nature of oral arguments in court this past week, it is clear that the court is keen on formulating an optimal entry level filter for the profession. As noted in this Livelaw piece:

"What has happened to the noble profession and the lawyers? Fall in standards is visible. It is time we introspect, raise the standard, look what is happening around us..Some advocates are agitating, some are stoning, some are firing and very few are arguing” the CJI said in an apparent reference to the violence indulged in by lawyers recently at the Patiala House Courts on two days when JNU sedition case accused Kanhaiya Kumar was being produced."

At this stage, one is not sure as to how the court will canvass this concern for cleaning up the profession, while being mindful of the potential illegality of the present bar exam. If it does find the exam to lack statutory backing, could it direct the government to amend the Advocates Act? Or may it only suggest so?

The time is also ripe for bringing back our discussion on the
competence of the Bar Council to regulate legal education, something that has generated a fair bit of controversy in the past.

In a rather dry and elaborate paper, I've argued (along with Sroyon Mukherjee) that the BCI has no competence to regulate legal education as a whole, but should restrict itself to the narrow space that lies at the interface of legal education and the practice of the profession i.e. aspects of legal education that are intrinsically connected with the practice of law at the Bar (the "bar exam" would nicely fall into such a slot).

In a previous post on this blog, Nick Robinson, while highlighting an op-ed by Sudhir Krishnaswamy, rightly noted that a Bar Exam
may in fact offer more freedom to law schools to avoid the stranglehold
of BCI interference.

Interesting times ahead for the regulatory landscape around Indian legal education and the profession! Watch this space for more!

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